Defamation

o Defamation: is an attack on someones reputation. It consists of the twin torts of libel and slander. It is a tort committed against Ps character and reputation by the Ds false statement of fact intentionally, recklessly or negligently published to a 3rd person and the statement holds P up to ridicule, contempt, hatred, shame or disgrace. This tort cannot be committed against a dead person but a business organizations can be defamed. o Trial testimony about an out-of-court slanderous statement or an out-of-court libelous document is not hearsay because the defamatory statements themselves have independent legal significance. The statement is not being offered for the truth of its content, but purely for its legal effect to show the statement was made. o Trial testimony about an out-of-court libelous statement (in print) should be objected to by the defendant under The Original Document Rule (Best Evidence Rule) because the document itself should be offered as the best evidence or an explanation as to its non availability (A DOPE). o RULE:Defamation statements of fact do not impose strict tort liability. Thus, the statement must have been made intentionally, recklessly or negligentlycommunicated (published) to a 3rd party (someone other the defamed P). o RULE:There is no tort liability for a defamatory statement that was made solely to P unless there was reason to believe that someone else would overhear it. o Rule:If D communicates defamatory statements to just P, then this is not a publication of the defamation unless republication by the P is foreseeable or is compelled by the circumstances, then the D is liable  Sending a libelous letter to a blind person  Republication of the defamation to Ps agent who has inquired about Ds prior statements to others is privileged, if D reasonably believed that P, through his agent, invited D to repeat the statement o John is a thief: If written in Ds diary is not defamation but if D leaves the diary open on a desk in a law library and another student reads it, then there arises a negligent publication of the defamatory material, thus making the D liable. o Rule:The third person that hears or reads the defamatory statement does not have to believe it is true. o Rule:A person who repeats the defamation is equally liable, even if she states she does not believe it. o Rule:In NY, in order to plead a prima facie cause of action, the specific words must be pleaded as well as where, when, and to whom they were spoken. o Is a defamatory statement privileged if it is placed in Ts will?  No, there is no such privilege

o Slander
 Slander is defamation addressed to the ear, where liable is addressed to the eye

Rule: Slander is defamatory speech, which requires special damages (out of pocket pecuniary losses) that must be pleaded in the complaint and proven and proven at trial, unless it is slander per se. Rule:Thus, slander per se is treated just like libel, where special damages are presumed and do not have to be pleaded or proven. Slander per se is CLAMS y Falsely accusing P of committing a serious Crime y False statement that P has a current (not a former) Loathsome communicable disease (ex: a sexually transmittable disease) y Making a false statement that specifically, Adversely reflects on Ps business, trade or profession y Falsely accusing P of Moral turpitude. For example, fraud, dishonesty or deceit. Cheating on an exam or plagiarizing a paper y False statement of serious, Sexual misconduct of P

o Libel
 Rule:Libel is a false unprivileged publication of a statement of fact in writing, in an email, or in a picture. Proving libel damages is easier than for slander because the defamatory consequences of libel are more severe. When defamation is put in writing, its preserved for a longer period of time. Thus, special damages are presumed and they do not have to be pleaded or proven. NEW YORK: adheres to the 1 Publication Rule, permitting just a single cause of action for libel contained in books, newspapers, websites, or other mass publications. Defamation per quod: is a statement basically harmless on its face and which requires extrinsic evidence to establish its defamatory meaning. Special damages must be pleaded and proved when alleging any per quod slander, including CLAMS slander. Libel per quod requires proof of special damages unless it fits within CLAMS category, then no special damages are required. They are assumed.

 

o Defamation (libel or slander) is absolutely privileged even if its was motivated by CL malice (meanness, spite, ill-will or hatred of P) under the following JET

LEG (disjunctive) circumstances

 Defamatory statements made in the course of Judicial proceedings by judges, jurors, lawyers, parties or witnesses in pleadings, motion papers, letters, deposition testimony or trial testimony. To be protected by this privilege, the Ds statement must be relevant or pertinent to an issue in the litigation. For example, a psychologists false testimony concluding the father had sexually molested the child. y Nothing said in a courtroom can be the subject of a defamation action unless the statement was totally unrelated to the underlying proceeding. Thus indicating that the statement was maliciously motivated solely to defame.

 

This privilege does not apply when statements are made to people not involved in the litigation process (ex: to the press). y NEW YORK:No defamation claim arises in NEW YORK for publishing a fair and substantially accurate account of the judicial proceeding, thus summarizing or restating the allegations in a complaint are protected. Confidential defamatory communications spoken between spouses who are deemed one Entity when a spouse is sued for defamation y The element of publication to a 3rd person is present when a third persons defamatory statement is made to one spouse (W) about the other spouse (H), then the privilege does not apply and H can sue for defamation. Truth y At CL, good reputation was presumed and D had the burden of proving the defamatory statement was true. Today, this does not apply to statements involving matters of public concern where the P has the burden of proving the statements falsity. Statements by Legislators made in legislative chamber and the privilege extends to aids assisting the legislator. However, if the legislator leaves the floor and holds a press conference or the false statement is made during an election speech, there is no privilege Government Executives who made defamatory statements in furtherance of their official duties (mayor, commissioner of health) False statements made to Bar Associations Grievance Committees y

o Rule:This is a qualified defamation privilege under LIP circumstances, but this privilege is not absolute as it is with JET LEG and the privilege is waived if the P can prove that the defamatory statement was made with 1) CL malice (spite or illwill toward P) or 2) a high degree of awareness of its probable falsity (constitutional malice)  Lower officials of govt agencies  False statements by one person to another concerning a subject in which both parties have a common Interest in the subject matter. This privilege fosters a free exchange of information among people having a common interest. For example, statements made between members of a board of directors, members of a faculty committee, or discussions between a past or present employee made to a prospective employer, or a statement by a law school to a prospective employer y This common interest protects good faith communication made in discharging a duty in which parties have a common interest. For example, statements made in a faculty tenure committee, in a BD meeting or a hospital committee determining whether a doctor should continue to have staff privileges  Defamatory statements to the Police or to the district attorney about Ps alleged criminal activity

o Rule:It is a question of law for the court to decide whether a qualified LIP privilege has been lost by Ds malice.

First Amendment Considerations o Prior to Sullivan v. NY Times, the 1st amendment protections did not extend to defamatory statements. Thus, a D was liable in tort unless the statement was made with an absolute JET LEG privilege or a qualified LIP privilege. Sullivan for the first time afforded defamatory statements some first amendment protection if the defamed person was a public official and the statement related to her official conduct, the 1st amendment freedom of speech and freedom of the press protect false criticism against public officials unless the defamed public official can prove by clear and convincing evidence not only that the statement was false (P has that burden), but D knew it was false or has serious doubts about its truth, but proceeded to publish it with reckless disregard of its probable falsity. The USSC called this standard actual malice.This standard is not measured objectively by whether a reasonable publisher would have published it, but rather it is a subjective test which requires P to prove that the D actually had serious doubts about the statements truth or had a high degree of awareness of its probable falsity. Thus, if D believed all the false things she said about the public figure, then there is no constitutional malice, and thus, no claim. o Rule:The court has extended this 1st amendment protection beyond a public official to defamation of a public figure, whose name is a household word (a celebrity in its field) either because of his accomplishments, fame, or success in the field. o Rule:For a defamed private person who has voluntarily and affirmatively thrusts herself into the public limelight of a single controversy, then the USSC has held that states should be given a wide latitude in designing a tort remedy for these defamed Ps who are just momentary public figures, but that states cannot impose liability without fault (no strict tort liability for defamation). The reason these private individuals should be afforded more protection from defamatory statements is because, unlike public figures or public officials, the private individual lacks the resources ($$$) and the access to mass media to rebut a defamatory statement (NYAA 758)  Tiger Woods and Brett Favre are public figures, but there girlfriends who exposed their sexual exploits are Momentary Public Figures  A majority of states (MBE) have adopted a mere negligence standard. Thus, if by the exercise of reasonable care, D should have discovered the statement was false, then the private individual can recover for defamation. o NEW YORK:However, NY being a pro-1stAmendment state, requires a higher burden of proof by requiring P prove that D acted in a grossly irresponsible matter. o Regardless of what standard a state adopts, a momentary public figure can recover only for actual damages pleaded and proven (no presumed damages even though tort was libel), and that P cannot recover punitive damages unless P can establish

the Sullivan standard of actual malice. PRIVATE Individual:If a defamed private individual is not involved in a manner of public concern, thus Ds defamatory statement is of interest solely between the speaker and the listener, then the defamed private P can recover compensatory damages without any finding of CL malice. Such a D in that lawsuit commits defamation even though she reasonably believed in the truth of her statement, but in that suit, in order to recover punitive damages, NY requires proof of CL malice and an intent to harm P. Also, if that private P was defamed by either libel or CLAMS slander per se, then compensatory damages can be presumed and need not be pleaded or proven.

- Strict Tort Liability

o STL is imposed even for non-negligent or unintended injury to plaintiff or the plaintiffs property. The plaintiff does not have to prove intent or negligence, but only has to prove that the plaintiffs injury was proximately caused by A SWAN activity.  Abnormally Dangerous Activity (MBE tests on this) y Rule:STL is imposed on a D who knowingly engages in an abnormally dangerous activity involving a high degree of risk of serious injury to person or property that cannot be eliminated by the exercise of reasonable or even utmost care. It is a Ds exposing others to an abnormal risk that justifies imposing STL. y (CL) Under the English law doctrine of Rilens v. Fletcher, a nonnegligent D was held liable for the escape of impounded water from a reservoir that flooded a neighboring mine. Liability was imposed based on the earlier foreseeable risk that the D chose to have on his property. o Today, most courts do not impose STL for escaping damned water, and only requires negligence to recover. y The followings BODES for determining an Abnormally Dangerous Activity: o Benefit to the community is outweighed by its high risk of harm o The activity is not a common Occurrence o There is a high Degree of risk of harm involved in the activity o The inability to Eliminate that risk through the exercise of reasonable care. o The likelihood of Severe harm arising from that activity. y Examples of abnormally dangerous activity: o Use, manufacture, storage or transportation of dynamite o Testing rockets o Radioactive vapors escaping from a nuclear power plant o Storing or moving hazardous, nuclear or toxic waste

Strict liability is not excused even if the resulting harm is caused by an unexpected force of nature. For example, if lightning strikes dynamite, a storage tank with highly flammable liquid, or a chain on a wild tiger setting it free. Nevertheless, absolute liability will be imposed on D Examples of non-abnormally dangerous activity o Underground gas lines o Residential propane gas tanks o Storage or transportation of heating oil or motor fuel o Electric power lines Rule:One who conducts ultra-hazardous activity is strictly liable to one that is likely to harmed by a miscarriage of that activity. However, there will be no recovery for injuries arising from the abnormally-sensitive character of P. Rule:A Ps assumption of the risk of a non-negligent operation of an abnormally dangerous activity is a defense to a strict liability claim. (NY would use comparative negligence). o Therefore, if P enters a construction site to watch dynamite blasting. P assumes dynamites usual, abnormal risk, but does not assume the risk of any negligence in the D using the dynamite. Rule:STL is not avoided by employing an Independent Contractor to perform the abnormally dangerous activity. There is a non-delegable duty to conduct such activity without causing harm to others.

 

Strict Products Liability (LECTURE 12) Workers Compensation (Essy #4 July 2000, Essy#4 Feb. 2007) y Rule: WC is a form of strict liability imposed on employers. It is a form of no fault insurance to compensate injured workers unexpectedly injured on the job by the co-worker, negligent employer, a 3rd person, or by the workers own negligence. The only claim the employee has against the employer or the employee who committed the tort is to file a WC claim with the employers workers compensation insurance carrier. o P was secretly videoed while changing clothes at work. Here, Ps claims against her employer for negligent supervision and for negligent retention of an unfit employee would be dismissed because they are barred by workers compensation law. o NEW YORK:However, in NY, P could sue the employee since his conduct did not fall within the scope of employment (purely personal to P) and she could

simultaneous seek workers comp. benefits. y Rule:An intentional tort inflicted by the employer or a fellow employee also allows the injured employee to sue for her personal injuries (sexual harassment, assault or battery). When an employee dies or is injured on the job, only 2 Worker Compensation issues arise: o 1. Did the employees injury arise within the scope of employment? o 2. What is reasonable compensation for the injury? And if after the WC Board hearing the dissatisfied employee can seek an Art. 78 as to whether to amount is supported by substantial evidence. NEW YORK Rule: When employees momentarily abandon work to play, tease, steal, or satisfy curiosity then any resulting injury is considered within the scope of employment. (NEW YORK IS VERY LIBERAL). o WC does not apply to an employee coming to and from work. Rule:Workers Compensation does not apply to someone employed as an independent contractor and the IC can sue the person who hired the IC. (WC no defense for Independent Contractors). Rule: Under WCs dual capacity doctrine, when an employer or fellow employee injures the worker in some different capacity, then the injured MBE worker can sue the employer in that capacity. For example, when an employer has two roles: sue them 1) as the workers employer, and another as o A landowner (landlord); o The manufacturer of a defective product; or o A health care provider o NEW YORK Rule:NY has rejected the dual capacity doctrine and does not allow the injured employee to sue an employer in the employers other capacity. Workers comp. is the injured workers exclusive remedy, regardless of the employers alternate status because D in such a suit, continues to remain either Ps employer or co-employee in all matters arising and connected with their employment (NYAA 847) o Rule:Under the borrowed servant doctrine, if a worker is paid by one employer (who also pays for the employees WC insurance), but that worker reports to a different employer who directs, assigns, supervises and control the employee, then the injured worker cannot sue that special employer if injured on the job since workers comp would be the exclusive remedy.

Injuries caused by wild Animals or vicious domestic animals

Tort law imposes strict liability on the custodian (one who harbors): o 1. A wild animal; or o 2.A domestic animal that she knew or should have known was vicious (vicious propensity) Rule: Wild animals are those which as a matter of common knowledge are ferocious or unpredictable (Alligators, Bears, Crocodiles, Rattlesnakes are wild, but bees in a hive are considered domestic) Rule:The possessor (one who harbors) of a wild animal is strictly liable for personal injury or property damage directly caused by that animal. If the wild animal escapes, strict liability continues indefinitely until the wild animal is recaptured by the owner or by a 3rd person. Strict liability is imposed for injuries resulting from: o An attack o Fear of an attack o Fear caused to another animal (horse), who then proximately causes personal injury or property damage because of its reaction to the fear Rule: If the wild animal is under the owners control (it has not escaped) (ex: circus animals or wild animals in a zoo) then liability for the reaction of human or other animals resulting in personal injury is not strict liability, but is based on DIP and the foreseeability of harm Rule:Strict liability is limited to the harmful results of the animals normal, dangerous propensities o Without any negligence, a bear got out of its locked cage when lightning struck the cage. The owner is strictly liable if the bear attacks or mauls someone, but if the bear falls asleep on the side of the road and P, at night, while riding a bike, hits the bear and P is injured, then D is liable only if P can prove Ds negligence in allowing the bear to escape because Ps injuries were not caused by the animals normal, dangerous propensities or fear therefrom (consider using res ipsa to establish negligence) because the bear is under Ds exclusive control and absent negligence, bears do not escape from locked cages o HYPO: X kept C, a pet chimpanzee that was thoroughly tamed and accustomed to playing with Xs children. C escaped, even though X took every precaution to keep C caged and 1 year later, it approached a group of children. M, mother of 1 of the children, thinking C was wild and dangerous and was going to attack the children, fearfully rushed to the childrens aid in her hurry and excitement, M broke her leg. X is strictly liable

because the injury arose from Ms fear of an attack by the animal y Rule: In MBE, Strict tort liability for wild animals and for abnormally dangerous domestic animals is not imposed for the benefit of trespassers. However, negligent liability may be imposed on the basis on how the animal was kept or for failing to control the animal once a trespassers presence was discovered or where Ds land was frequently used by trespassers.

Domestic Animals
y Rule: Domestic animals are those animals customarily devoted to serving people. The animal status is determined at the time and in the place where the animal was kept when Ps injury occurred. Rule: Tort law imposes strict liability for personal injuries caused by the domestic animal if the person who kept the animal knew or should have known of the animals vicious propensities. o Vicious Propensity: is where the animal acts in a manner that might endanger another person or property. Rule: Barking or running around is not vicious, and is consistent with normal K-9 behavior. Rule: If a dog bites someone, then the owner is on notice the dog is vicious. However, a dog is not necessarily entitled to one bite before absolute liability is imposed. Instead, before absolute liability is imposed the court looks at whether the dog demonstrated vicious propensities. If not then it is entitled to one free bite. o BGS: Vicious propensities are BGS, that is, did the dog Bear its teeth, Growl, or Snap at someone. Query: Can a court take judicial notice that a pit bull has a vicious disposition? o No, there must prior proof of the dogs vicious propensities (NYAA 724) Rule:Strict liability is imposed, even though Ps injury would not have occurred but for the unexpected: o Innocent, negligent or reckless conduct of a 3rd person. For example, teasing the dog or letting a lion out of the cage. o Actions of another animal; OR o The forces of nature. (For example, a storm or flash flood caused the circus truck to tip over, releasing the lion) RULE: In MBE, but not in NY, a person injured by a non-vicious domestic animal can sue on negligence based on how the animal was kept and supervised in light of the foreseeable danger to those entering the land. Negligence liability arises if D failed to take reasonable measures to prevent a foreseeable injury in light of the 9

y y

animals normal characteristics. (NYAA 722) (BULL in heat) y NEW YORK:In NY, the concept of negligent ownership of a domestic animal does not exist.

Control of Animals (Cows, Horses, Donkeys) y Rule:An animal owner may be liable in negligence for a failure to properly confine an animal when that animal usually is fenced in. o For example: horses, cows or donkeys. If such an animal runs onto the road, causing an accident, then liability will be imposed if negligence can be established (use res ipsa). However, this liability is not imposed for cats or dogs, unless the owner was aware of that animals habit of interfering with traffic. y Rule: In most jurisdictions, even though the owner used reasonable care to fence in an animal inclined to roam, strict liability is imposed FOR PROPERTY DAMAGE caused by trespassing domestic animals inclined to roam.!!!

 Negligence Per Se
y Rule: Absent a valid excuse, a violation of a safety statutory standard of care such as rules of the road (speed limits), smoke detector requirements for residential tenants, lifeguards at a public swimming pool is negligence per se, which if established by P is a conclusive presumption of negligence on which a jury is not permitted to disagree (SJ or a directed verdict) Rule: To establish negligence per se, P must establish that: o Ds violation of a civil or criminal safety statute proximately caused Ps injury  Example: State X statute provided that all vessels must provide life boats. A steamboat set out on a voyage without lifeboats and a severe storm suddenly arose. P a passenger fell overboard and drowned, if there had been lifeboats they could not have been launched due to the severity of the storm. Thus, the violation of the safety statute was NOT a proximate cause of Ps death, and negligence per se could not be invoked. o P was a member of the class of person that the statute was designed and intended to protect AND o The harm to P was the type of harm the statute was designed and intended to prevent. If D does not rebut this evidence (1,2 and 3) above with a valid excuse for violating this statute, then the jury must find against D on the liability issue

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o D was illegally parked next to a fire hydrant. P, a passenger in Ds car, was injured when another car, sideswiped Ds illegally parked car. Here, D parking illegally was the cause in fact of Ps injury, but it was not the proximate cause. Also, P was not a member of the class of persons sought to be protected by the fire hydrant law (#2 above) and the fire hydrant was intended to prevent the type of harm that occurred to P (#3 above) y Rule: Most licensing statutes (a liquor license, a taxi license, a hunters license, a drivers license or vehicle registration statutes) are not susceptible to negligence per se since they are primarily revenue raising and do not seek to prevent harm and do not necessarily seek to protect any class of persons NY: In NY, but not MBE, the violation of a local safety ordinance or of an administrative agencys safety requirement is not negligence per se but is only deemed some evidence of negligence, which the jury may consider (NYAA 804; 722 Patron Case) o D was driving a truck carrying dynamite without a state permit to transport dynamite. Ds truck was involved in an accident and because of a defectively manufactured latch on the truck, a box of dynamite fell out. It did not explode but bounced and stuck P, a pedestrian. Here, neither strict tort liability for abnormally dangerous activities nor negligence per se would apply. D would be liable only if P could establish Ds negligent DIP conduct proximately caused Ps injuries. Rule: The negligence per se doctrine CANNOT be invoked for the following reasons o Even with diligence and care, D could not have complied with the safety statute. For example, where Ds stopped car was struck from the rear, pushing it through a red light into Ps car OR D unexpectedly had a heart attack and it crossed the center line onto oncoming traffic o D acted under an unanticipated and sudden emergency o Violating the safety statute was safer than complying with that statute. For example, where a group of children ran out into the street, causing Ds car to swerve into oncoming traffic

- Intentional Torts (Tested heavily on MBE)

o Intentional torts consist of 2 major categories:  Intentional tortuous conduct committed against Ps person.  assault,  battery,  false arrest, 11

false imprisonment, malicious prosecution or the intentional infliction of emotional distress OR Intentional tortuous conduct to property. y conversion, y trespass, y TIK (tortuous interference with a K) o Rule: Intent is different from negligence. o Definition:Intent is a desire motivated by malice, mistake or humor to bring another a physical or mental impact upon others person or property. For example, touching P, entering her real property or stealing Ps chattel (personal property) o Rule: Intent is Ds desire or objective in acting. Intent can be implied where the consequences of Ds conduct were substantially certain to occur. It is implied that someone intends the natural and probable consequences of his intended act.  Example, by firing a gun in the middle of a deserted island, Y intends to pull the trigger. If the bullet hits X hiding up in a tree, Y did not intend or desire that harmful result and under the circumstances, it was not substantially certain to happen. However, when Y fires a gun into a crowded bar, then his intent may be implied because Y intentionally pulled the trigger and the resulting personal injury was substantially certain to happen     o Rule: Proof of damages is not required to establish a prima facie intentional tort claim because economic and non-economic damages are presumed to arise from an intentional tort. o When 2 or more persons agree to commit an intentional tort, there is no NY or MBE civil tort of conspiracy. A cause of action in tort arises only for the commission of a tortuous act, but not in the agreement to commit that act. However, in criminal law, the crime of conspiracy is a separate crime o Sleepwalkers are not liable for their acts because their acts are not voluntary o Rule: A reflect or convulsive movement is not considered intentional contact. Punitive Damages o Rule: Can be awarded for egregious intentional or reckless tortuous conduct, but not for mere negligence. Punitive Damages are not awarded to compensate the P, but to punish the defendant and to deter other from committing similar conduct in the future. o Rule:are awarded not simply because the Ds conduct was intentional or reckless, but because it was quasi-criminal, malicious, and outrageous. (I.E. a vicious battery, intentional infliction of emotional harm, false imprisonment, or spiteful defamation.) o Rule:Punitive Damages are warranted where the D intended to harm the P. Or where the D was recklessly or intentionally indifferent to the Ps rights. o Rule: A PD award has never been sustained in NEW YORK for Medical Malpractice. o Rule: Punitive Damages can be imposed on manufacturers, who for years knew their product was Defective and Unreasonably Dangerous (DUD) but failed to correct it. However, Due Process prohibits a jury from punishing a D for injuries caused to others who are not parties in the lawsuit. Yet, the jury can consider injuries inflicted

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on non-parties in determining whether the Ds conduct was EXTRAORDINARLY Reprehensible. o Rule: Due Process requires a judicial review of the amount of punitive damages. A grossly-excessive Punitive Damages award is a Due Process Violation. The ratio of PD to compensatory damages should almost never exceed single digits, and in many cases, PD should not exceed compensatory damages. (Supreme Court: 4 times the amount of compensatory damages might be close to the line or constitutional impropriety absent extremely egregious reprehensible conduct.) o NEW YORK: no separate cause of action for PD. And the D should move to dismiss such a claim under CPLR 3211(a)(7). The demand for punitive damages should be placed in the last paragraph of the complaint.

ASSAULT (Essy #4 2011) o Definition: An assault is either:  An attempted battery attempt means to try, but does not succeed.  An intent to cause apprehension of an immediate battery by Ds display of violence or a threatening gesture. It is Ds intent to frighten P and it requires some overt act or aggressive gesture. o Rule:An assault is a mental invasion, whereas the tort of battery is a physical invasion.An assault results in Ps apprehension of immediate harmful or offensive contact rather than the contact itself. o Rule: Merely abusive, angry or insulting language does not constitute an assault. o Rule: Angry words can be an assault if accompanied by circumstances or activities (acts) that put P in reasonable apprehension of an immediate battery.  Example: where D is wearing a pistol and threatened to kill P right now, this constituted an assault even though D did not draw the pistol o Rule: Fear by P is not a required element of the assault, as long as she though that she would be subjected to immediate harmful or offensive contact. o Rule: P must be aware of the assault; that is, she must have had apprehension of an immediate bodily contact. That is, she cannot be unconscious or asleep. o Rule: P must experience the apprehension for her own safety and not because of a possible battery to a 3rd person. o Rule: It does not matter that the assault was only a joke, just as long as P experiences apprehension for his own safety. o Rule:D must have been in the position to immediately carry out the threat. That is, to immediately commit the battery on P.  Example: threats over the telephone are not assaults.

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o Rule**: Future threats are not assaults. For example, if you do not pay me by next Tuesday, Ill break your leg. o Rule: Conditional threats are not assaults. o Rule: A conditional threat can be an assault if it is accompanied by a display of excessive or unreasonable force. For example, I will throw this brick through your front window unless you get out of the car o Rule: Reasonable force, but not excessive force, can be used by the possessor realty to expel a trespasser (or an adverse possessor)  Example. get off my property or Ill carry you off is not an assault because: y It was a conditional threat AND y D is privileged to use reasonable force to expel a trespasser o Example: E, an employee, was fired, was told by R, an employer, who kept a gun in his attic, to get off Rs place of employer or he would shoot her in the head. This was not an assault because:  It was a conditional threat AND  There was no immediate display of force. The bodily contact apprehended by E must be immediate and it would require R to retrieve the gun from the attic. Thus, E had no reasonable basis to fear immediate harmful contact.

BATTERY o Rule: A D commits this tort when he intentionally causes harmful or offensive bodily contact with the P. An accidental touching may be negligence but it is not a battery. A battery does not arise from ordinary, acceptable social contact. o Rule: The intent required for the battery is the harmful or offensive contact, and not the intended or unintended harm to P.  Example: D, while sitting next to P in a law school class, suddenly and without any warning, kissed P on the lips. The chemicals in Ds lipstick caused an allergic reaction resulting in P being hospitalized. D is liable for Ps injuries. o Rule:A battery can be either:  D intentionally inflicting harmful or offensive contact on the P. y Offensive: is disagreeable, disgusting or nauseating conduct that would offend a reasonable person OR  D intentionally committing an assault (to cause apprehension to P of immediate harmful or offensive contact), which sets in motion a force that accidently and unintentionally causes offensive or harmful contact to the P. (MBE heavily tested)

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Transferred Intent (Tort Law version) o HYPO: X, intending to frighten A, threw a beer bottle at A, missed A and hit Z as he was waking by. Under the doctrine of transferred intent, z can sue X because the battery arose from an assault that resulted in harmful or offensive contact to Z. o HYPO2: D attempted to punch X for insulting Ds girlfriend. D punch missed and hit P. D is liable for Ps battery even though D accidently (negligently) hit P. Ds battery liability is based on the doctrine of transferred intent. Also, if X was aware of Ds attempted battery and X was apprehensive, then D would also be liable to X for the tort of assault. (Essy #4, Feb. 2006). o Rule: Under the tort doctrine of extended liability (transferred intent), wherever a D intends to commit a battery, an assault or a false imprisonment, then D is liable for any of the three torts that result to the intended victim or to others, regardless of whether they were foreseeable, intended or not.  HYPO: D commits a violent assault on X, but P is also standing nearby and becomes apprehensive of a battery. Under this doctrine, D is liable to P for an assault. Also, if Ds violent conduct caused P to fear to move, then D is liable to P for False Imprisonment. (Transferred Intent much narrower in Crim. Law). o Transferred intent in criminal law is much more narrow. The intent to commit one type of crime cannot be transferred to another type of resulting crime.  D threw a brick, intending to hit X (a criminal battery) but it missed X and smashed Os car window. D is not guilty of criminal mischief because D lacked the intent to commit that crime o Rule:A D does not have to directly strike P. It is sufficient if D intentionally sets in motion a force, which produces the harmful or offensive result. o Rule:There must be some contact with P, his clothing or with something he is holding. The contact can be direct or indirect.  Example: slamming a door in Ps face, snatching something out of Ps hand or kicking the crutch out from underneath P o Rule:Except for ordinary social hospitality, no matter how trivial the incident, P can sue for battery. o Rule:Unlike an assault, P does not have to aware of the battery. Thus, kissing, slapping, or fondling an unconscious or sleeping person is a Battery. o Rule: 2 Most frequently used defenses in claims for assault or battery are:  Ps consent to the touching; or  Justification for the touching (aka self-defense)

Defense of Consent o Rule: People consent to ordinary social contact when they participate in a sports activity or enter a crowded room or subway - there is implied consent to reasonable contact.

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Example: Tapping someone on the shoulder, or friendly grasp of Ps arm, or brushing by P in the aisle of a grocery store. o Rule: A person does not have to tolerate contact by a stranger that otherwise would be allowed by an intimate friend. o Rule: If P has indicated to D that she does not want to be subjected to ordinary touching, then thereafter such touching can be a battery (even though touching was done with good intent.) o Rule: In NY and MBE, a Ps consent to a fistfight defeats a battery claim unless the severity of the battery exceeded the consent.  o Rule:If the consent to contact was obtained by fraud or mistake, it voids the consent but only if the mistake goes to a material (essential) aspect of the touching, thereby rendering it harmful or offensive. Here, Ps mistake must go to the nature and quality of the intended touching, rendering the contact harmful or offensive. Also, D must be aware of Ps mistake.  HYPO: P, a prostitute, consented to have sex with D, but D paid P with a bounced check. The remedy for this fraud is not a tort of battery but the tort action of deceit or breach of K, but D would assert the (IFUMED & I SIP) defense of illegality, but P could counter with the defense of THUG y Type of illegally y Harm that forfeiture would cause y Unjust enrichment of D y The relative Guilt of each party, and here P and D are in paridelicto  Ps mistake related to a collateral matter (payment) and not to the nature or quality of Ds contact. Thus, the tort of battery did not occur. HYPO2: X knew that he had a sexually transmittable disease, but X engaged in consensual sex with Y. Y could sue X for battery because Ys consent to the touching was due to a mistake of a material aspect of the contact, making the contact with X harmful or offensive and X was aware of Ys mistake. Y also could assert a claim for Xs IIED (SAD CEO), provided Y suffered severe and dehabilitating emotional distress. o Rule: Outrageous insults provoking Ds immediate MBE battery will not justify a battery, but Ds provocation can be used by the jury to mitigate punitive damages against D. o NEW YORK: In NEW YORK, the jury can also consider Ds provocation to mitigate Ps compensatory damages as well punitive damages.  Justification (aka self defense) o Rule: The rules for justification are the same for tort and criminal law o Justification Defense:is based on the Ds reasonably use of force, that the D reasonably believed necessary to protect himself or another from imminent threat of assault, a battery or false imprisonment, even if D was mistaken. Self defense can also be used to protect against anothers negligent conduct. o Rule: There is no justification for the use of force unless the others threat of force was immediate. Justification cannot be invoked based on a threat of a future battery.

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o Rule: The issue for the jury is whether a reasonable person under similar circumstances would have believed force was necessary for self-defense and whether the force used by the D was reasonable and not excessive. o Rule: DEADLY FORCE can be used only to prevent anothers use or threatened use of deadly force. o Rule: CL and in a majority of states, there is no duty to retreat when faced with deadly force unless D was the original aggressor who is then confronted with deadly force by his victim, who then has a duty to retreat before using deadly force. Deadly force is anything capable of causing death or serious injury o NEW YORK Rule: Before using deadly force in NY, Restatement of Torts says that a D must first attempt to retreat before using deadly force if he could have done so with complete safety, unless he is inside his own home where there is no duty to retreat. (Essy# 2 Feb. 2005, 2008). o RULE:There is never a duty to retreat before using physical force in self-defense. o Rule: If D is justified in using force and in doing so, unintentionally injures or kills a bystander, Ds force is nevertheless privileged and D would not be liable to the bystander unless he used the force negligently. However, Ds conduct (negligence) must be determine under the circumstances (Emergency Doctrine situation) unless that D initiated the altercation or should have foreseen it. o If a gun was used, then the jury is instructed to separately analyze each shot fired by D in determining whether Ds action was justified. Even if a D is justified in using deadly force at the beginning of an encounter, his right to use lethal force would terminate at a point that he longer could reasonably could believe that his assailant posed a deadly threat to him o In a majority of states, when protecting a 3rd person from a possible battery, D can assert justification only to the extent that the person aided could have justifiably used force. Thus, the person coming to the rescue of a 3rd person takes the risk that the person being aided would not be able to assert justification under the circumstances. D steps into the shoes of the person he is aiding o MBE and NY allow a D to use force to protect a 3rd person if such force reasonably appeared necessary even though D was mistaken o Deadly force for the protection of personal property or to expel a trespasser is not justified o NY allows deadly physical force to prevent what D reasonably believed was a burglary, a robbery, arson, kidnapping, a forceable rape or a forceable sexual act o A mistake, even a reasonable mistake in using force, for the protection of real or personal property, is not a justifiable defense. For example, if P entered Ds land with a privilege but D mistakenly believed P was a trespasser, then P can recover for any resulting personal injury or property damage resulting from the wrongful rejection o The use of reasonable force is justifiable to immediately recover stolen property in hot pursuit. A demand for the return of the property must first be made and then only reasonable force can be sued to retrieve the property. If there is a lapse of time, then the justification for the use of force lapses and if force is used, a battery occurs. If there is a lapse of time, then D should have resorted to the police or sued the thief for conversion or replevin

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o If there was a bailment in which property was voluntarily turned over to another and the bailee refuses to return the chattel, then the bailor cannot resort to force to retake the bailed property o A custodian of children (a teacher, parent or guardian) is privileged to use reasonable force to prevent a third person from injuring the children or to prevent the children from inflicting property damage or personal injury on others

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